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Patent History Materials Index - ANNUAL REPORT OF THE COMMISSIONER OF PATENTS FOR 1881

Annual Report of the Commissioner of Patents to Congress for the year ending December 31, 1881

Laid before the House of Representatives by the Speaker February 2, referred to the Committee on Patents, and ordered to be printed.

Department of the Interior
United States Patent Office
Washington, D.C., January 31, 1882

Sir:
I have the honor to submit herewith a report of the transactions of this Office, together with a detailed account of all moneys received for patents, copies of records and drawings, and from all other sources; also, a statement of the expenditures for contingent and miscellaneous expenses, a list of patents granted and arranged under proper heads, and an alphabetical list of the patentees, with their places of residence, said statements and lists covering the transactions of this Office during the year 1881.

The receipts of the Office during the past year exceed those of any previous year by nearly $100,000, or more than fourteen per cent, and the excess of receipts over expenditures ($248,492.61) has been correspondingly greater. In no former year have there been so many applications for patents filed or so many patents granted.

The ratio between the number of applications and the number of grants, as gathered from the Commissioners' reports since 1836, has varied from time to time, and it is a matter of interest to trace briefly the causes of this variation. At first, although the number of patents which could serve as references was comparatively small, yet the proportion of rejections was far greater than it is today, approaching in 1847 two thirds of the whole number of applications. This is largely attributable to the fact that the means of learning the little that had actually been done were in the hands only of those having special opportunities, such as were possessed by the Commissioner of Patents and his subordinates. Hence many crude inventions were presented in application, and the same invention many times by different persons. Afterwards, when the publications of the Patent Office became more widely disseminated and inventors had at command facilities for making independent investigations before applying for patents, the number of rejections became proportionately smaller. During the past fifteen years, however, the variation in the ratio has been small. This essential stability manifestly represents a like stability in the requirements fixed by the Office as prerequisite to the grant of a patent. It is equally manifest that such stability tends to strengthen public confidence in the decisions of the Patent Office as being prompted, not by personal whim, but by conformity to fixed principles of judgment. In order, however, to secure this end there must be permanence in the examining force.

In his report for the year 1874 Mr. Commissioner Leggett says:

It is well known that complaints from many sections of the country against our whole patent system arise almost exclusively from patents that are improperly granted because of the want of proper supervision in their examination; and with so many persons examining and passing applications for issue it is an impossibility to establish anything like a uniformity of practice in the Office.

The confusion here noted is largely augmented when to the differences of mental make-up is added the lack of special knowledge to which those are subject who take the place of retiring officers. It is worthy of note that the few exceptional years since 1867 during which there has been any considerable variation in the number of patents granted as related to the number of applications have been marked by frequent resignations.

In this connection, the attention of Congress is called to the fact that there has been no increase in the salary of principal examiners since 1848, when it was fixed at $2,500. Since 1877 the annual appropriations for the salaries of these officers has been only $2,400. The salaries of First and Second Assistant Examiners were fixed in 1855 and have not since been increased. As a result the best men not unfrequently leave the Office for more lucrative positions, much to the detriment of the service. It is unnecessary to say that the qualities required to make a good examiner are of the very highest order, such as command the largest salaries in positions outside the Office. In view of these considerations, it is hoped that Congress will consider the expediency of increasing the salaries of the examining officers in this Bureau, with a view to greater permanence in the force and the consequent increase of its efficiency.

Increase of Force Necessary

The needs of the Office as regards working force and room for the force actually employed have been so often and so forcibly pressed upon the consideration of Congress that it might be deemed a work of supererogation to renew reference to them here were it not that the cumulative character of the reasons for such pressure must rescue any words of mine from the criticism of presenting a mere repetition of what has already been said. Even were that the case, the necessity for action would be sufficiently urgent. The request for an increase of force which Mr. Commissioner Paine made to Congress in 1879 was repeated by Mr. Commissioner Marble in 1880 and emphasized with the words, "The force employed ... is entirely inadequate to the amount and character of work required." Since that time the work has increased more than fourteen per cent, and the force, which was then inadequate, has received an addition of about three per cent. At the present rate of increase in the number of applications for patents either the work must accumulate upon the examiners' desks or the quality of the work done must be such as to bring discredit upon the thoroughness of official examinations. The annual increase alone represents a number two thirds as great as the entire number of patents applied for in the year 1861, at which time Congress appropriated money for the support of sixteen principal examiners, each to be provided with a first and second assistant.

I cannot refrain from pursuing this comparison still further. The Office now has twenty six principal examiners, twenty four of whom have first, second, and third assistants. The Examiner of Trade Marks and the Examiner of Interferences have no assistants. The full examining corps, then, numbers ninety eight, while in 1861, it numbered forty eight. Now, the total number of applications for patents in 1861 was 4,643 as against 20,059 during the year just past. It is, however, only fair to suppose that the act by which Congress fixed the number of examiners at forty eight was based upon an estimated advance upon the business of the preceding year. Granting, then, that the force provided by Congress in 1861 was adequate to the proper examination of 9,000 applications, (the number for 1860 was 7,653, and that for 1859, 6,225,) the present force could only be expected to dispose of 18,000 cases, whereas the actual number of cases presented for action during the year 1881 is fifty per cent greater. If to this be added the fact that the field of search becomes every year more extended; that, instead of the 31,000 American patents existing in 1861, the examining corps now has to become familiar with 250,000, and if it be considered that a similar increase has taken place in the number of foreign patents to be reviewed, and that scientific publications, which every examiner should read, have multiplied in like proportion, it will be obvious that all the increased facilities furnished by the printing of the specifications and the reproduction of the drawings in convenient form cannot offset the enormous disproportion shown by the above comparison. The mere mass of the work, however much the facilities for examination might be multiplied, would require a larger force than is provided for by the annual appropriations of Congress.

In view, therefore, of all these considerations, I recommend that Congress authorize the appointment and provide for the compensation of four additional examining divisions, each to consist of a principal examiner and three assistants.

Room

Scarcely less urgent is the need of room. This need is particularly felt in the Draftsman's Division and in the Library. The former is now distributed in three widely separated parts of the building, an arrangement which is especially inconvenient for this division, owing to the constant need on the part of examiners and attorneys of consulting it in all its branches. A large number of messengers is thus required, whose services could otherwise be dispensed with. The Library can neither shelve all its books and pamphlets nor properly accommodate those persons who would gladly make use of its stores. The Record room and the Attorney's room should, for obvious reasons, be closely connected with the Library; but both are far removed from it, and are also apart from each other. Owing, too, to lack of space, work is now being done in rooms which are unfit for occupancy.

The evils of overcrowding in examiners' rooms have been fully set forth in the reports of former Commissioners. It is manifestly impossible for the assistants properly to attend to their own work while the examiner is conducting a hearing in the same room; yet only three of the examiners have consulting rooms apart from those occupied by their assistants. Besides, it should be noted that the custom of keeping the photolithographs and specifications in each room -- a custom which lack of space elsewhere would have compelled if convenience had not recommended it -- has necessitated the employment of shelves and drawers, which narrow very considerably the desk capacity of all the rooms. For this reason most of the rooms now in use are overcrowded to a degree of great inconvenience. More than double the space now available for the examining force is absolutely required for the proper dispatch of business and the health of the employees.

Digests

The digest of American patents, for which a provisional appropriation was made by Congress at its last session, has been in progress since the beginning of August last. It is proposed to furnish the office and the public at large classified briefs of all American patents. The classification in the body of work will conform in general to that already existing in the several examining divisions, while the indexes will contain cross references to every sub-device which is of sufficient importance to be described in the specification of the invention to which it belongs. Thus the examiner or the inventor will not only have at hand an adequate digest of each case under its proper classification, but he can dispense with a search that is often very laborious for reference in the broader classes under which the special invention is comprised. It is hardly possible to overestimate the benefit that will inure to the Office and to inventors from the prosecution of this work. A specimen of the work already done will soon be laid before Congress, and it is believed that when its nature becomes clearly understood from actual examination there will be no doubt as the desirability of completing it.

Amendments to the Law

Section 4886 of the Revised Statutes provides, as one of the conditions necessary to the obtaining of a patent, that the invention shall not have been "in public use or on sale for more than two years prior to the application;" and section 4920, relating to the grounds of defense in an action for the infringement of a patent, provides that the defendant may plead "that it had been in public use or on sale for more than two years before his application for a patent or had been abandoned to the public." The theory of our patent system is that it is the duty of the Commissioner to determine in advance the right of an applicant to a patent. The plea of public use, if sustained, operates to defeat a patent. Notwithstanding the theory above stated, and notwithstanding the fact that public use is made a bar to the grant and to the validity of a patent if granted, the Commissioner has no means of ascertaining the fact except in cases of notorious public use. It frequently happens that the fact is alleged by parties interested in the defeat of an application, and affidavits to that effect are filed, coupled with a protest against the granting of a patent. As these protests are prompted by self-interest, and as the only practical means of bringing the matter to the attention of the Commissioner is by ex parte affidavits procured by interested parties, and as the affiants cannot be compelled to appear for cross-examination by any process of law, this kind of evidence is of a very unsatisfactory character, and applicants may well object, as they do, to having their rights determined upon such questionable evidence. I therefore recommend a provision of law for taking testimony in cases where the question of public use is raised similar to that already existing for taking testimony in interference cases.

Serious question has arisen as to the proper construction to be put upon that part of section 4887 which provides that --

Every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent; or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force for more than seventeen years.

It is contended by many lawyers practicing before this Office that the limitation here indicated applies only to inventions which were patented abroad before the application was filed for an American patent, while others of equal authority hold that the priority contemplated by the provision is priority of grant, and this corresponds with the later rulings of the Office. As a matter of fact, it is often impossible to ascertain whether a given invention has been patented in a foreign country or not. The case may be pending in several countries at once, and after the American patent has been granted it may be discovered that the same invention was patented abroad on the day before it was issued here. If it is the desire of Congress to limit in any case the duration of the American patent by that of a previous foreign patent for the same invention, it is hoped that the statute will be so amended as to leave no room for doubt. But when it is considered that our patent system is intended to "promote the progress of the useful arts," and when it is remembered what our liberal patent system has already done for the accomplishment of this end, it may well be doubted whether all proper inducements should not be offered to the foreign inventor to patent his invention in this country. There would seem to be no valid reason why an invention that has been patented elsewhere should not, if found new and useful, be protected in this country for the same number of years as in any other invention. The statute (sec. 4887, part 1) furnishes a sufficient inducement to promptness in making application by providing that such an invention shall be patentable, "unless the same has been introduced into public use in the United States for more than two years prior to the application." Besides, the statute operates in effect to discriminate against the American inventor. In some foreign countries a patent cannot be maintained for an invention which has been previously patented in the United States. American inventors may thus be debarred from protection in those countries; or, if they choose to secure that, are deprived of some at least of the privileges which were meant to foster the spirit of domestic invention. I therefore recommend that that part of section 4887 of the Revised Statutes which limits the term of the American patent by that of the foreign patent to be repealed.

Section 4807 of the Revised Statutes is ambiguous, the application for patent therein referred to being designated "an application," "second application," and "renewed application." In order to make the section consistent with other parts of the law and all parts of it compatible with each other, I recommend that the same be amended so as to read:

Sec 4807. Any person who has an interest in an invention or discovery, whether as inventor, discoverer, or assignee, for which an application was made and a patent was ordered to issue upon the payment of the final fee, but who fails to make payment thereof within six months from the time at which it was passed and allowed and notice thereof was sent to the applicant or his agent, shall have a right to renew such application and obtain a patent for such invention or discovery upon the payment of the fee required by law the same as in the case of an original application. But such renewed application must be made within two years after the allowance of the original application. But no person shall be held responsible in damages for the manufacture or use of any article or thing for which a patent was ordered to issue under such renewed application prior to the issue of the patent. And upon the hearing of renewed applications preferred under this section abandonment shall be considered as a question of fact.

Printing

Provision is made by statute for the sale of printed copies of specifications and drawings of patents at a minimum price of ten cents per copy. There is no provision of law for the gratuitous distribution of the same. A custom, however, has grown up in the Office of furnishing without charge to several governmental departments and bureaus such copies of patents as they may desire for actual use. Furthermore, in order to reciprocate the courtesies extended to this Office by the corresponding bureaus of other governments, we are now supplying England, France, Belgium, Germany, Austria, and Italy with complete sets of printed specifications and drawings as they are issued. These copies, added to such as are required for the use of examiners and other officers of the Bureau in the discharge of their duties, exceed the number of copies sold. In the absence of any legal sanction for the free distribution of copies, it is recommended that express authority be given the Commissioner of Patents to exercise his discretion in this regard. The necessity of printing the specifications from No. 1 to No. 48,126, issued prior to June 6, 1865, has already been referred to in previous reports of the Commissioner of Patents. This action is necessary in order to continue the international exchange, and at the same time to meet the demands of the Office and the general public.

Reports

I repeat here the following from Mr. Commissioner Marble's report for the year 1880.

Through some inadvertence the illustrations of the Patent Office Reports for the year 1870 have not been printed. If printed, the reports of this Office would be complete. It is estimated that these illustrations can now be reproduced by the photolithographic process at a cost of about six thousand dollars. The propriety of having the reports of the Office complete must be apparent to all. I therefore recommend an appropriation of the sum of six thousand dollars to complete this work, the same to be immediately available.

During the year an International Electrical Exposition and Congress of Electricians was held in the Palais de l'Industrie, at Paris, France, under the auspices of the French Government. Mr. Frank L. Freeman, Principal Examiner of the Class of Electricity, was appointed by the honorable Secretary of State as one of the honorary Commissioners of the United States, and was also designated by the Commissioner of Patents, with the approval of the honorable Secretary of the Interior, to represent this Office. A complete set of copies of all United States patents relating to electricity granted prior to July 1, 1881, was compiled and indexed, making sixteen large volumes, and this was sent to the Exposition as the exhibit of this Office. This exhibit attracted much attention, and helped very materially to show the leading position occupied by the inventors of this country in the development of the arts appertaining to the science of electricity. A diplome d'honneur was awarded the Office for this exhibit by the jury of awards.

In concluding this report, I again call attention to the showing made by the tables with which it opens. The large increase in the receipts of the Office argues great activity in the field of invention and continued confidence in the measures taken by our Government to encourage the inventive spirit. There is every reason to believe that the record of the present year will furnish even greater cause for congratulation in both particulars than is afforded by the report which I have the honor now to submit.